MORCO INDUSTRIES, INC. v. CITY OF LONG BEACH

JULY 27, 1988

MORCO INDUSTRIES, INC. v. CITY OF LONG BEACH, MISSISSIPPI

BEFORE ROY NOBLE LEE, PRATHER and ROBERTSON

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Morco Industries, Inc. (Morco) has appealed to this Court from a judgment of the Circuit Court, First Judicial District, Harrison County, Mississippi, which affirmed an order of the City of Long Beach, Mississippi (City), denying a refund of ad valorem taxes collected on behalf of the Long Beach Municipal Separate School District. Morco assigns two errors in the proceedings below.

On April 1, 1979, appellant Morco Industries, Inc. entered into a lease agreement with Harrison County, Mississippi, whereby appellant would lease from the county an industrial facility for the manufacture of china and stainless steel goods. Construction of the $3.95 million facility was financed by issuance of industrial revenue bonds pursuant to the BAWI Act, *fn1 and the county retained ownership of the industrial facility's land, building, equipment, fixtures, and furnishings. The principal and interest of the revenue bonds were to be retired by rent receipts from appellant over the fifteen-year term of the lease, and at the expiration of the term appellant would have the option to purchase everything. Construction of the industrial facility was completed in 1981.

Under 6.02 of the lease agreement appellant agreed

to pay all lawful taxes of any kind for which it might be liable. Section 6.02 further provided:

Nothing contained in this Section shall be construed to mean that any property, real or personal, included within the Project and owned by the Issuer shall be subject to ad valorem taxation by Harrison County, Mississippi, the Issuer or any other political subdivision of the State of Mississippi.

The Issuer agrees to cooperate in securing any tax exemption to which either it or the Company may be or may become entitled under the Laws of the State of Mississippi or the United States and relating to the Project. The Issuer covenants that it will not take any affirmative action which may reasonably be construed as tending to cause or induce the levy or assessment of ad valorem taxes on the Project and that it will take any lawful, affirmative action, upon the reasonable request of the Company, in order to prevent the levy of ad valorem taxes on the Project. The Issuer and the Company agree to cooperate and use their best efforts to secure and retain all such applicable exemptions from ad valorem taxation.

The industrial facility leased by appellant was located within the Long Beach Municipal Separate School District, but outside the corporate limits of appellee City of Long Beach, a municipal corporation in Harrison County. Pursuant to the authority of Miss. Code Ann. 21-33-15 (1972), the City collected from appellant municipal separate school district ad valorem taxes for the years 1981, 1982, and 1983 cumulatively totalling $44,103.84:

Tax Year Realty Personalty -------- --------- ----------

1981 5,829.75 0 1982 6,002.78 11,728.35 1983 5,961.31 14,571.65

--------- --------- 17,792.84 26,310.00

Appellant paid these taxes each year without protest or objection.

On August 29, 1985, appellant made application to the City for refund of the taxes named above/claiming that it was exempt from taxation and that the taxes had been

erroneously paid. The Mayor and the Board of Aldermen of the City of Long Beach heard oral argument on appellant's application on October 15, 1985, and relief was denied. Appellant then appealed to the Circuit Court of the First Judicial District of Harrison County, which, on June 26, 1986, affirmed the City's decison denying relief.

I.

THE LOWER COURT AND CITY OF LONG BEACH, MISSISSIPPI, ERRED IN FAILING TO ACKNOWLEDGE AND TAKE JUDICIAL NOTICE OF MORCO'S STATUTORY EXEMPTION FROM AD VALOREM TAXATION ON ITS ...

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